EAT Ruling: ‘Gender-critical’ beliefs are protected under equality law

25 June 2021

You may recall from the news when the Harry Potter author, JK Rowling, spoke out in support a woman who lost her employment tribunal claim over her gender-critical views.  The Employment Appeal Tribunal has now overturned that decision.  Here, we take a look at the case, which highlights to members the fine balancing act involved in the need to accommodate those with gender-critical beliefs, and continuing to ensure that the workplace remains a safe place for trans persons.

Basis of the case

The Claimant, Maya Forstater, who believes that it is impossible to change the sex assigned to a person at birth, lost her job after making her views known on online platforms such as Slack and Twitter.  Some of her colleagues were offended by her posts and complained, alleging that they were “trans-phobic.”  When her contract was not renewed, the Claimant brought proceedings to the employment tribunal, among which, she claimed that she had been discriminated against on the grounds of her gender-critical belief. The tribunal determined that her belief was not ‘protected’ under equality law, and her claim was dismissed. Ms Forstater appealed this decision.

A belief will be protected if it amounts to a ‘philosophical belief’ within the meaning of section 10 of the Equality Act 2010.  Caselaw has established a number of criteria for determining what constitutes a philosophical belief, 

  • It must be worthy of respect in a democratic society,
  • not incompatible with human dignity and
  • not conflict with the fundamental rights of others.

The initial tribunal held that the Claimant’s “absolutist” belief, whereby she would “refer to a person by the sex she considers appropriate even if it violates their dignity”, rendered it one that was “not worthy of respect in a democratic society”. The Claimant appealed. 

The Employment Appeal Tribunal held that,

“It is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection … the potential for offence cannot be a reason to exclude a belief from protection altogether.”

Mr Justice Chaudhury noted that:

“Just as the legal recognition of Civil Partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender “for all purposes” within the meaning of GRA does not negate a person’s right to believe, like the Claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.”

The EAT cautioned that its decision was not expressing a view as to any merits on either side of the transgender debate, and that people with gender-critical beliefs cannot misgender or harass trans persons with impunity. Everyone continues to be subject to the prohibitions on harassment and discrimination within the meaning of the Equality Act; employers continue, subject to the statutory defence, to be liable for any such prohibited conduct during the course of employment; and whether any such conduct is made out will be for an employment tribunal to decide in a given case.

Having now established that the Claimant’s gender-critical belief is protected, her case has been sent back to the tribunals to determine whether the non-renewal of her consultancy agreement was because of or connected to that belief.